Federal Contempt for Free Speech

Where “We the People” are sovereign, the press has a responsibility to investigate government, and the people have a duty to know the issues and speak their minds. The Founders did not just see these roles as opportunities, but knew that government by popular will could only succeed if the levers of accountability were maintained and operated by vigilant citizens.

The entire concept of personal sovereignty depends upon robust and vigorous debate on the issues that impact life and liberty, and therefore often inspire the most passion. When government usurps the authority of the people or the press to speak, a commensurate measure of individual autonomy will be compromised.

On the heels of news that the Department of Justice has been surveilling the press -- with a level of animus demonstrated against James Rosen that this DOJ is not known for applying to dangerous terror suspects -- comes an announcement that federal officials in Tennessee will suggest limits on public speech considered violative of Muslim civil rights. Bill Killian, U.S. attorney for the Eastern District of Tennessee, and Kenneth Moore, special agent in charge of the FBI’s Knoxville Division, will be featured speakers at an event billed as “Public Disclosure in a Diverse Society.” The event is sponsored by the American Muslim Advisory Council of Tennessee.

This meeting has been billed as a forum where “Killian and Moore will provide input on how civil rights can be violated by those who post inflammatory documents targeted at Muslims on social media.” In press interviews, Killian has responded to questions about his anticipated remarks by saying that “internet postings that violate civil rights are subject to federal jurisdiction.” He also revealed intent to “inform the public what federal laws are in effect and what the consequences are.”

The centerpiece of Killian’s clampdown is a controversial piece posted on Facebook by Coffee County Commissioner Barry West. West has explained that the picture of a man aiming a double-barreled shotgun with the caption, “How to wink at a Muslim,” expressed his “prejudice against anyone who’s trying to tear down this country.”

On first reading, one who knows the history of First Amendment rulings over the last eighty-five years might doubt the reporting on U.S. Attorney Killian’s statements. The Supreme Court has been increasingly protective of public speech on broad and highly charged policy matters over this period. Yet, when a Politico writer called the DOJ to clarify Killian’s leading statements, the DOJ did not show interest in commenting by time of publication.

Further, Killian’s record confirms his constitutional colors as he issued much the same message at the grand opening of the Chattanooga Islamic Center in 2012. In that setting, the similar veiled warning -- via carefully linked statements -- was that the Framers of civil rights law did not intend to allow “hypocrites” who choose “hate and prejudice as a value system” to practice their “double standard,” enjoying “liberty and freedom” while denying the “same Constitutional and statutory rights to others.” He cautioned that “the federal statutes apply to everyone and will be enforced equally.”

If the feds plan to just invent a new category of speech crimes for heightened protection of Muslim sensibilities they have to first contend with Supreme Court directives that leave no room for confusion.

The first of these hurdles is the Brandenburg Rule that essentially limits government censorship authority to speech that is a direct threat of imminent lawless action.

Chief Justice Roberts wrote in Snyder v. Phelps that “this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled,” although the Westboro Baptist protestors at military funerals were guilty of shouting highly offensive insults.

There is one very important aspect of this discussion that is being overlooked by the very federal government that says it cares so deeply about outreach to Muslims. This is the reality that there are basically two camps of Muslims living in the United States. Some are radicalized and do incline to, and incite, devastating civilian violence. In the same group -- while not choosing confrontational tactics -- there are those that work to supplant American legal norms with Islamic Sharia.

Most Muslims are here to participate in the democratic system and are not involved in efforts to subvert American values. America needs to have a serious conversation about how to identify the radical elements in order to distinguish them from the Muslims who are not a threat. This can only be accomplished with freedom to speak openly, including the understanding that such a process will involve some who will not speak eloquently or kindly.

Yes, let the response to any suppression of speech relating to public concerns be adamant and any demonstrations against speech controls be emphatic. Importantly, let the speech on this particular issue be persuasive and reasonable. While outrage over recent terror atrocities is proper, expressing hatred and bigotry will not produce the Muslim reforms needed, nor will it persuade un-engaged citizens of the vital need to protect speech.